With
the evolution of same-sex marriage, the concerning issues that existed between
same-sex couples in custody matters appeared to dissipate. However, in the
recent case of C.G. v. J.H., the issue of standing in a child custody matter
between same-sex partners has resurfaced and the result thereof has caused some
concern.

The
recent case of C.G. v. J.H., ___ A.3d ___, 2017 Pa. Super. 320 (Oct. 10), has
caught the eye of many family law practitioners. One of the hot topics in
Pennsylvania Custody Law is whether an individual has standing to bring a
custody action. In the past, there were a number of cases that were published
that pertained to child custody disputes between same-sex partners. Previously,
the issue of standing in child custody cases pertaining to same-sex couples
created an inequity as the nonbiological parent was considered a third-party,
which put that person at a disadvantage in certain forms of custody litigation.

With
the evolution of same-sex marriage, the concerning issues that existed between
same-sex couples in custody matters appeared to dissipate. However, in the
recent case of C.G. v. J.H., the issue of standing in a child custody matter
between same-sex partners has resurfaced and the result thereof has caused some
concern.

The
facts of C.G. are as follows: C.G. and J.H. lived together as a same-sex couple
in Florida. In October 2006, J.W.H. was born. Approximately five years later,
the parties separated. J.H. is the biological mother of J.W.H. According to the
opinion, C.G. alleged that she acted as the mother of J.W.H. and that she and
J.H. participated in selecting a sperm donor.

Six
months after the parties separated, J.H. and the child moved to Pennsylvania.
Approximately 3½ years after J.H. and J.W.H. moved to Pennsylvania, C.G. filed
an action in Pennsylvania seeking shared legal custody and partial physical
custody of J.W.H. J.H. thereafter filed preliminary objections challenging
C.G.’s standing to seek custody. C.G. responded to J.H.’s preliminary
objections “asserting that she had standing under the Child Custody Law both as
a parent of the child, … and as a person who stood in loco parentis to the
child.”

The
trial court held hearings on the preliminary objections and “received
conflicting testimony from 16 witnesses about C.G.’s role in the child’s life.”
Thereafter, according to the opinion, the trial court sustained J.H.’s
preliminary objections and dismissed the custody complaint filed by C.G. with
prejudice. C.G. filed an appeal with the Superior Court.

The
primary issues on appeal pertain to the trial court’s ruling that C.G. did not
have standing as a parent and that C.G. did not stand in loco parentis to
J.W.H. as well. At the time of J.W.H.’s birth, same-sex marriage and second
parent adoption were not yet recognized in Florida. Under the Child Custody
Act, standing is conferred on a “parent of the child,” but does not define
“parent.” According to the Superior Court, “Pennsylvania courts have
interpreted ‘parent’ to include only biological and adoptive parents.” The
Superior Court also stated that “case law has consistently treated the same-sex
life partners who have not adopted the child as third parties for purposes of
custody matters.” As such, the Superior Court found that the trial court did
not err in finding that C.G. lacked standing as a parent under Section 5324(1)
under the Child Custody Act. This holding has caused concern among some family
law practitioners considering the treatment of the term “parent” in other cases
where the child is conceived through assisted reproductive technologies.

The
other primary issue of the C.G. case pertains to whether C.G. had standing to
bring her child custody action through in loco parentis status. A person stands
in loco parentis to a child when the person “puts oneself in the situation of a
lawful parent by assuming the obligations incident to the parental relationship
without going through the formality of a legal adoption.” Under the Child Custody
Act (Section 5324(2)), a person can have standing to bring a child custody
action if the person stands in loco parentis to the child. However, it is
important to note that if an individual qualifies under in loco parentis
standing to bring a custody action, that party will be considered a third-party
and not parent. In custody disputes pertaining to primary physical custody,
there is a presumption in favor of a parent over a third party.

According
to the opinion, the decision pertaining to whether C.G. had standing under in
loco parentis status was based primarily on conflicting facts. C.G. alleged
that she acted as a co-parent to the child in their family structure where the
child resided with the parties as a family for a period of five years.

As
stated by the Superior Court in its decision: “the Supreme Court has explained
that ‘the status of in loco parentis embodies two ideas; first, the assumption
of a parental status, and, second, the discharge of parental duties.’”
According to the opinion, after hearing extensive conflicting testimony
regarding C.G.’s role in J.W.H.’s life, the trial court held that C.G. did not
stand in loco parentis to J.W.H. The following are some of the findings
reflected in the Superior Court’s opinion that led the trial court to conclude
that C.G. did not have in loco parentis status: the parties took no steps to
formalize a co-parenting arrangement and neither party suggested adoption after
adoption by members of a same-sex couple became a legal option in Florida in 2010;
C.G. never agreed to have a child, but merely tolerated the idea of J.H. having
a child; although C.G. initially carried the child on her medical and dental
insurance, she removed him from her policies after the parties separated; C.G.
was not listed as a parent on school or medical documents and was not intended
to be the child’s guardian if something happened to J.H.; J.H. did not consult
C.G. regarding educational or medical decisions, including preschool selection,
doctor selection or appointments, child care, and the child’s activities; C.G.
did not assume the role of a decision-maker for the child or make contributions
amounting to that of a parent. The trial court also focused on the time period
after the parties separated and highlighted that C.G.’s extended family members
have not reached out to the child since the parties separated and that C.G. had
minimal contact with the child after the parties separated.

Interestingly,
in a footnote, the Superior Court dismisses three pieces of evidence which were
not “she said/she said”: two handwritten notes from J.H. to C.G. and C.G.’s
life insurance policy, on which she identified the child as her son. It appears
that those pieces of evidence were not conflicting as was all of the other
evidence that was submitted to the trial court. However, based on the totality
of the evidence submitted, the trial court found that C.G. lacked standing
under loco parentis. According to the Superior Court: “faced with conflicting
testimony regarding C.G.’s role in the child’s life, the trial court acted well
within its discretion in resolving those conflicts in favor of C.G.” The
Superior Court then affirmed the trial court’s holding that C.G. lacked in loco
parentis status.

This
case is an important case for family law practitioners in that it impacts who
is considered a parent in assisted reproductive technology custody cases.
Further, the court found that C.G. lacked standing to bring a custody action
despite the fact that she and J.H. lived as a family with the child for five
years. The case also highlights many other legal aspects regarding preliminary
objections containing factual disputes as well as a request for a demurrer. The
Superior Court stressed there is a difference between allegations and actual
proof, and the Superior Court found that the proof submitted in this case
pointed towards a lack of standing by C.G. It will be interesting to see how
the case is treated in the future in other similar circumstances in other
matters.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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